Arrest Discretion Under BNSS: Why the Supreme Court's "Fresh Materials" Carve-Out May Undermine the Safeguards It Just Affirmed

The Supreme Court's Balancing Act on Section 35 BNSS

The Supreme Court's latest pronouncement on arrest safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) presents a familiar pattern in Indian criminal jurisprudence: two steps forward on procedural protections, one step back through judicially created exceptions. The Court has held that a notice under Section 35(3) BNSS is mandatory for offences punishable up to seven years, seemingly strengthening the arrest jurisprudence developed under Arnesh Kumar v. State of Bihar (2014) and its progeny. However, the same judgment permits police to arrest under Section 35(6) if "fresh materials" arise after the notice is served.

This dual holding deserves close scrutiny from practitioners. While the mandatory notice requirement is welcome, the "fresh materials" exception risks becoming the very loophole that renders the safeguard illusory.

What Section 35 BNSS Actually Says

Section 35 BNSS replaces Section 41 CrPC and governs arrest without warrant. Section 35(3) mandates that where the offence is punishable with imprisonment up to seven years, and the conditions in Section 35(1)(b) are not satisfied, the police officer shall issue a notice to appear instead of arresting. This notice is not discretionary—it is the default position.

Section 35(6), however, preserves the power to arrest where the officer has reason to believe that the person may commit a further offence, tamper with evidence, or flee. The Supreme Court's ruling clarifies that "fresh materials" emerging after the notice—such as new evidence of flight risk or witness tampering—can trigger arrest even after a Section 35(3) notice has been issued.

The Court's reasoning is sound in principle: circumstances change, and police cannot be bound indefinitely by an initial assessment. But the devil lies in what constitutes "fresh materials" and who scrutinizes that determination.

The Arnesh Kumar Legacy and Its Dilution

The judgment must be read against the backdrop of Arnesh Kumar, which mandated that police officers record their reasons in writing before effecting arrest for offences punishable up to seven years. The Supreme Court had warned that failure to comply would render the officer liable for departmental action and contempt. Section 35(3) BNSS codifies this safeguard by making the notice mandatory.

Yet the "fresh materials" exception introduces troubling discretion. Consider the practical scenario: police issue a Section 35(3) notice. The accused appears as directed. Two days later, the investigating officer claims to have received "fresh materials" suggesting the accused might influence witnesses. Under the Supreme Court's ruling, arrest is now permissible.

The problem is evidentiary. What constitutes "fresh materials"? An unsigned statement? A phone call from an unnamed informant? The judgment does not specify the threshold or require judicial pre-approval. This creates the same pre-Arnesh Kumar opacity that led to arbitrary arrests under Section 41 CrPC.

Implications for Bail Practice

Defense counsel should note the interplay between this ruling and the Court's separate holding on default bail under Section 187(3) BNSS. The Supreme Court has clarified that non-supply of a charge-sheet copy cannot by itself justify default bail. This means that even if arrest follows a Section 35(6) invocation based on questionable "fresh materials," the accused cannot automatically claim default bail on procedural technicalities.

The combined effect is significant. Police can arrest post-notice with minimal scrutiny, and the accused's remedies are limited to challenging the arrest itself under Section 482 BNSS (inherent powers) or seeking regular bail under Section 483. The default bail route is effectively closed unless the charge-sheet is not filed within the statutory period.

The Bombay High Court's Corrective

There is some counterweight from the High Courts. The Bombay High Court has directed the Maharashtra DGP to review arrest instructions and forms to ensure compliance with Supreme Court directions. This suggests judicial awareness that arrest procedures remain non-uniform across states, and that the "fresh materials" exception could be misused without standardized protocols.

Similarly, the Allahabad High Court's order directing compensation of ₹25,000 per day for illegal detention beyond 24 hours under BNSS preventive detention provisions signals that courts are willing to impose costs for procedural violations. Defense counsel should leverage these precedents when challenging arrests under Section 35(6).

What Practitioners Should Do

First, when a Section 35(3) notice is issued, immediately advise the client to comply and document the appearance. Any subsequent arrest under Section 35(6) must be challenged on the ground that the "fresh materials" are either stale, fabricated, or insufficient to meet the statutory threshold.

Second, in bail applications following such arrests, emphasize the mandatory nature of Section 35(3) and argue that the exception under Section 35(6) must be construed narrowly. Cite Arnesh Kumar and the principle that arrest is the exception, not the norm, for offences punishable up to seven years.

Third, where arrest follows a pattern of harassment—multiple notices followed by arrests on vague "fresh materials"—consider filing a writ petition under Article 226 challenging the abuse of process. The Bombay High Court's direction to the DGP provides a template for seeking systemic relief.

The Larger Concern

The Supreme Court's ruling reflects a broader tension in BNSS jurisprudence: the desire to preserve police discretion while appearing to strengthen safeguards. The "fresh materials" exception is not inherently problematic—circumstances do change. But without clear evidentiary standards or judicial oversight, it risks becoming a catch-all justification for arbitrary arrest.

The Court had an opportunity to mandate that "fresh materials" be placed before a Magistrate for approval before arrest. It chose not to. That choice will likely result in increased litigation and, unfortunately, increased custodial violence and illegal detention, as police test the boundaries of the exception.

For now, practitioners must treat every Section 35(6) arrest as presumptively suspect and demand strict proof of the "fresh materials" claimed. The safeguard of Section 35(3) is only as strong as the scrutiny applied to its exceptions.